PLANNING FOR INCAPACITY 18 July Lucy Taylor Solicitor Court of Protection Team Irwin Mitchell LLP

Agenda Introduction Mental Capacity Act 2005 Wills Powers of Attorney Court of Protection Advance Decisions Questions

The Mental Capacity Act 2005 (‘MCA’) The Act was implemented in Code of Practice – Practical Guide Lord Chancellor - “Vitally important piece of legislation that would make a real difference to the lives of people who lack mental capacity.” Some Key Words “Empower” “Protect” “Flexible Framework” “Participation” “Placing individuals at the very heart of the decision-making process”

Purpose of the MCA The Act is designed to protect people who cannot make decisions for themselves or lack the mental capacity to do so. The Act's purpose is to enable adults to; –make as many decisions as they can for themselves. –make advance decisions about whether they would like future medical treatment. –appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date. –allow decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time. –ensure an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted. –provide protection against legal liability for carers who have honestly and reasonably sought to act in the person’s best interests. –provide clarity and safeguards around research in relation to those who lack capacity.

Who does the Act apply to? The Mental Capacity Act applies to anyone aged 16 or over. Parents of a child with disabilities or additional needs will therefore need to be aware of the Act and its potential implications for their role in decision-making once their child reaches this age. Everyone who looks after, or cares for someone who lacks capacity to make particular decisions for themselves.

Who does the Code of Practice apply to? The Code of Practice provides guidance and information about how the Act works in practice. Describes the responsibilities of; –assessors of capacity –decision-makers –independent supporters –care homes and hospitals Certain categories of people have a legal duty to be aware of their responsibilities.

The Five Key Principles of The Act Section 1 of the Act sets out the fundamental principles:- 1.Begin by assuming that people have capacity “A person must be assumed to have capacity unless it is established that he/she lacks capacity. 2.People must be helped to make decisions “A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success.” 3.Unwise decisions do not necessarily mean lack of capacity “A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision.” 4.Decisions must be taken in the person’s best interests “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his/her best interests.” 5.Consider whether the decision can be made in a way that is less restrictive of the person’s freedom “Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.”

Assessing Capacity As family carers, you may need assess the capacity of relative with a view to acting or making a decision in their best interests. Assessment is simply about establishing why you have that “reasonable belief” that someone lacks capacity before acting or making a decision on someone’s behalf. A professional or paid worker may need to make a decision if they believe someone cannot make it for themselves. In these situations they are known as the ‘decision-maker’ and it is their duty to ensure an assessment of the person’s capacity is carried out before any decisions are made in a person’s best interests. If the decision is a major one, they may ask a specialist (such as a psychologist or a speech and language therapist) to help them assess the person’s capacity. Whoever carries out the assessment will often ask a family carer for advice and information to assist them, for example about the best way to communicate with the person.

Wills – Why is this important? “Declaration of a persons intentions as to the matters to take effect on death” Capacity Formalities: –Writing –Signed –2 independent witnesses present –Witnesses sign –Devolved by marriage/civil partnership unless steps are taken 9

Destination of Estate Executors Guardians Specific gifts Heirlooms Sentimental items Estate goes to those you want But BEWARE Inheritance (Provisions for Family and Dependents) Act 1975 Failing to make provision for a person can lead to a claim Use of Trusts

Need to give careful consideration if leaving to someone who may be mentally incapable of managing their affairs Options: –No benefit given at all –Outright gift –Trust options Trusts for Wills

Statutory Wills Last resort – Court makes the choice Expensive and time consuming process No guarantee it will be what the testator would have wanted

Powers of Attorney Ordinary Powers Enduring Powers (made until 30/09/07) Lasting Powers (made from 01/10/07)

Ordinary Simple General or limited to specific financial decisions Not an effective provision Invalid if Donor become mentally incapable Types of Powers of Attorney

Types of Power of Attorney Enduring Simple & cheap “insurance” against mental incapacity Still limited to financial decisions Open to abuse

Types of Power of Attorney Lasting Complex & costly More scope: Property & Affairs, Personal Welfare (incl health treatment) Cannot use until registered (£120 fee) Cannot use Personal Welfare until incapable

LPA – Property & Financial Affairs Financial Decisions –Dealing with assets as if owner –Financial planning –Buying and selling property –Business decisions Restrictions

LPA – Health & Welfare Day to day decisions Life sustaining treatment decisions

Capacity is the key Ordinary Power of Attorney Court of Protection Enduring Power of Attorney Lasting Power of Attorney Line of Capacity

Court of Protection – the last resort Necessary to ensure protection of a person who is not able to make decisions for themselves Formal application to appoint a Deputy –Lay –Professional Types of Deputy Appointment –Property & Financial Affairs –Health & Welfare Court Application

Court of Protection Not just make day to day decisions, also specific decisions such as: –Purchasing property with funds –Statutory Will –Medical treatment

Advance Decision to refuse treatment Decision made when a person has capacity Not override with an LPA unless LPA made later and gives power to override Qualifying criteria: –Had capacity when made –No coercion –Fully understand the implications of the decision NB Health professionals have to be satisfied that the decision is applicable to the circumstances

Questions

Contact information Lucy Taylor Solicitor Irwin Mitchell LLP Imperial House 31 Temple Street Birmingham B2 5DB Tel: